Age discrimination occurs when an employer treats an applicant or an employee less favorably because of his or her age. Under federal law, age discrimination is forbidden against those who are age 40 or older. Some states have laws that protect people younger than 40, but it is not illegal for an employer to favor an older worker over a younger one, even when both workers are over 40. The Age Discrimination in Employment Act (ADEA) forbids age discrimination with regard to all aspects of employment, including hiring, termination, job assignments, job advertisements, layoffs, training, and fringe benefits. Moreover, it is illegal for a supervisor, coworker, or even a client or customer to harass an employee about his or her age. Many states also have laws that prohibit age discrimination, and some of these laws cover much smaller businesses than those covered by ADEA.
The ADEA is a federal law that applies to employers in industries affecting commerce that have 20 or more employees. It also protects U.S. citizens working for U.S. employers that operate abroad, except when it would violate that country’s own laws. Although it is illegal to discriminate against applicants or employees over age 40, age can be lawfully specified if it is a “bona fide occupational qualification.” For example, age can be specified when public safety is at stake, such as in the context of airline pilots or bus drivers. It also can be required for an actor who is needed to play a certain role.
Employees may allege three categories of age-related employment discrimination. The first is disparate treatment. This is when a discriminatory motive is involved. For example, a company that hires an inexperienced 22-year-old instead of an expert computer programmer who is 50 but has much superior qualifications may be found to violate the ADEA. Similarly, a construction company that only trains younger plumbers to fill a more lucrative job and refuses to train a 44-year old plumber may be found in violation of the ADEA.
The second category of age-related employment discrimination is disparate impact. This occurs when an employment policy seems to be neutral on its face, but it adversely affects people who are 40 or older. This focuses on the consequence of an employment practice, irrespective of motive. For example, a company might ask managers to identify the least productive employees for layoffs. If it does not provide any criteria for productivity, workers over 40 may be disproportionately rated as the least productive employees. This could be considered discrimination based on disparate impact. If this type of pattern is shown, the employer will then bear the burden of showing that any adverse actions were actually based on a “reasonable factor other than age.”
The third category of age-related employment discrimination is age-based harassment when an employer, supervisor, or coworker creates a hostile work environment that unreasonably interferes with the work performance of an employee who belongs to the protected group. For example, supervisors and coworkers at a software company might make multiple daily remarks that someone is too old to know what young people like or understand how to utilize new technologies. That person might feel significant emotional distress as a result, preventing him or her from properly fulfilling the duties of the job. This is another situation in which age-based discrimination might be found.
